Designated drivers injured in a crash caused by a drunken passenger are not covered by third-party liability insurance, warns a B.C. Supreme Court judge. In a ruling on an odd personal-injury claim dating back to 2006, Justice Anthony Saunders decided a woman cannot collect an $800,000-plus judgment from ICBC.

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Designated drivers injured in a crash caused by a drunken passenger are not covered by third-party liability insurance, warns a B.C. Supreme Court judge.

In a ruling on an odd personal-injury claim dating back to 2006, Justice Anthony Saunders decided a woman cannot collect an $800,000-plus judgment from ICBC.

Marnetta Felix was driving her inebriated boyfriend Kevin Hearne home to Chilliwack from a soccer tournament on July 8, 2006, when he grabbed the steering wheel, causing her to lose control of the vehicle.

In September 2011, Felix was awarded $791,950 in damages, and costs of $71,292.63 against Hearne’s estate.

Under the Insurance (Motor Vehicle) Act, she sought to recover from ICBC the total amount of $863,242.63 plus post-judgment interest.

In her view, she was no different from a cyclist who is injured by someone who opens a car door — her costs should be covered.

Her lawyers argued that indemnity could be provided to the Hearne estate because he had insurance on his own vehicle, but the judge dismissed that claim as absurd: “Having one’s own owner’s certificate would entitle one to the status of an insured in respect of any motor vehicle, without that vehicle’s owner’s consent, and without having paid any extra premium.”

Alternatively, Felix’s lawyers said she should be covered by third-party liability because Hearne was a passenger who committed a negligent act no different than opening the door on a cyclist.

Moreover, if she were not covered, they insisted, designated drivers would be put at risk.

“It is foreseeable that impaired persons may behave foolishly while being driven by a designated driver, and in doing so could distract the driver or interfere in operation of the vehicle,” Saunders acknowledged.

“Injury to the designated driver might result. In such a situation, to refuse to extend liability coverage to an impaired passenger on the grounds that his or her use of the vehicle as a passenger is not ‘use’ within the meaning of the Revised Regulation would potentially leave an injured designated driver without any means of obtaining compensation.”

The justice thought there was a lot of force to that argument.

“To deprive such drivers of a means of compensation when injured through the negligence of an inebriated passenger is to shift the risk of loss to them entirely,” he said.

“This would appear to be a powerful disincentive to anyone acting as a designated driver, when there was any risk of a passenger acting irresponsibly.”

Nevertheless, the justice said his analysis of the law led him inexorably to the conclusion that Felix was not covered.

“When a passenger in a motor vehicle intentionally interferes with the vehicle driver, is the passenger using or operating the motor vehicle such that his or her actions are covered by motor vehicle third-party liability insurance?” the justice reiterated.

No, he answered — the law did not provide coverage.

The statute, he said, extended indemnity explicitly to a passenger who causes injury or death to a person not occupying the vehicle by operating any part of the vehicle while the vehicle is being operated by an insured.

“On its face, this section would appear to be intended to encompass situations such as a passenger opening a door and thereby interfering with a passing cyclist,” Saunders explained.

But it did not cover situations such as when a passenger has grabbed the wheel.

“(ICBC) is under no obligation to indemnify the Hearne estate, and the plaintiff’s claim must therefore fail,” Saunders concluded. “The consequence of this interpretation as regards designated drivers is one which some may find disturbing. If that consequence was unintended, that is a matter for consideration by the government.”

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